Gurrieri et al v. County Of Nassau et al
Filing
75
ORDER granting in part and denying in part DEs 8 , 73 Motion to Certify FLSA Collective Action. For the reasons set forth in the attached Memorandum and Order, the Court grants in part and denies in part Plaintiffs' motion to proceed as a collective action and to facilitate notice under 29 U.S.C. § 216(b), as detailed therein. Ordered by Magistrate Judge Steven I. Locke on 5/23/2019. (Kantor, Jesse)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RONALD GURRIERI, DIANE
MCCAULEY, LAWRENCE LOISELLE,
MARY TEDESCO, EDWARD
DONOGHUE, and all others similarly
situated,
Plaintiffs,
-against-
MEMORANDUM
AND ORDER
16-CV-6983 (ADS)(SIL)
COUNTY OF NASSAU,
Defendant.
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STEVEN I. LOCKE, United States Magistrate Judge:
Plaintiffs Ronald Gurrieri (“Gurrieri”), Diane McCauley (“McCauley”),
Lawrence
Loiselle
(“Loiselle”),
Mary
Tedesco
(“Tedesco”),
and
Edward
Donoghue (“Donoghue,” and collectively “Plaintiffs”) commenced this action on behalf
of themselves and all others similarly situated seeking, inter alia, unpaid overtime
compensation from Defendant County of Nassau (“Defendant” or the “County”),
pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq.
and the New York Labor Law (“NYLL”). See Amended Complaint (“AC”), Docket
Entry (“DE”) [40]. 1
Presently before the Court, on referral from the Honorable Arthur D. Spatt for
decision, is Plaintiffs’ motion for an order: (i) conditionally certifying this matter as
an FLSA collective action pursuant to 29 U.S.C. § 216(b); (ii) directing Defendant to
The Nassau County Police Department and Nassau County Civil Service Commission were originally
named as additional Defendants, but both were dismissed from the action. See Section I(B), infra.
1
provide Plaintiffs’ counsel with a computer-readable data file containing the names,
addresses, and telephone numbers of all potential opt-in members, namely, current
and former nonexempt Ambulance Medical Technicians (“Technicians”), Ambulance
Medical Technician Supervisors (“Supervisors”), and Ambulance Medical Technician
Coordinators (“Coordinators,” and collectively with Technicians and Supervisors
“AMT Personnel”), dating back six years from the filing of the Complaint; (iii)
authorizing circulation of a proposed Notice of Lawsuit with Opportunity to Join (the
“Proposed Notice”), see DE [8-2], Ex. G, to the putative class via United States Postal
Service first-class mail; and (iv) authorizing the posting of the Proposed Notice at the
Emergency Ambulance Bureau Office and Medical Control Office, located within the
Nassau University Medical Control Office at 2201 Hempstead Turnpike, East
Meadow, New York 11554 (the “Ambulance Office”).
DE [8]; DE [73]; see also
Plaintiffs’ Memorandum of Law in Support of Their Motion to Proceed as a Collective
Action and to Facilitate Notice (“Pltfs.’ Mem.”), DE [8-1]; Plaintiffs’ Memorandum of
Law in Further Support of Their Motion to Proceed as a Collective Action and to
Facilitate Notice (“Pltfs.’ Reply”), DE [19].
Defendant opposes conditional
certification, and certain aspects of the Proposed Notice and requested methods of its
dissemination. See generally Memorandum of Law in Opposition to Plaintiffs’ Motion
for Conditional Certification of a Collective Action (“Def.’s Opp.”), DE [14]. For the
reasons set forth below, the motion is granted in part and denied in part as detailed
herein.
2
I.
Background
A.
Relevant Facts
The following facts are taken from the Amended Complaint and declarations
submitted in support of the instant motion, and are accepted as true for the purposes
of the motion. 2
The County is a municipal corporation incorporated under the laws of the State
of New York. See AC ¶ 15. Plaintiffs, current nonexempt employees of Defendant,
hold various AMT Personnel positions within the County, the Nassau County Police
Department, and the Nassau County Civil Service Commission. Id. ¶ 1. The duties
of AMT Personnel – whether as a Technician, Supervisor, or Coordinator – mainly
involve being dispatched via radio calls to individuals in need of medical treatment.
See id. ¶ 36. Specifically, Technicians are responsible for assessing patients and
performing advanced life support techniques to help sustain life while en route to a
hospital. Id.; see also McCauley Decl. ¶ 4. Supervisors are tasked with “managing
subordinates and assignments, coordinating EMS communication and resources,
monitoring employee shifts, time and leave, assessing quality of paperwork,
patrolling the County …, responding to emergency assignments, and assisting EMS
personnel and units as well as responding to police personnel.” Donoghue Decl. ¶ 4.
Coordinators duties include “overseeing [Supervisors] and subordinate [Technicians],
Plaintiffs each submitted a declaration in support of the instant motion. See Declaration of Ronald
Gurrieri (“Gurrieri Decl.”), DE [8-2] at 30-36; Declaration of Diane McCauley (“McCauley Decl.”), id.
at 37-42; Declaration of Mary Tedesco (“Tedesco Decl.”), id. at 43-48; Declaration of Lawrence Loiselle
(“Loiselle Decl.”), id. at 49-54; Declaration of Edward Donoghue (“Donoghue Decl.”), id. at 55-60
(collectively, “Pltfs.’ Decls.”).
2
3
responding to emergency assignments, rendering aid when necessary, investigating
complaints and providing written reports when necessary.”
Gurrieri Decl. ¶ 4.
Gurrieri began working for the County in 1980 as a Technician, was promoted to
Supervisor in 1992, and has been a Coordinator since 1997. See AC ¶ 10. McCauley
had been employed as a Technician since 1994. See id. ¶ 11. Tedesco started out as
a Technician in 1994 and has been a Supervisor since 2016. See id. ¶ 12. Loiselle
began working as a Technician in 1991 and remains in that role. See id. ¶ 13.
Donoghue started as a Technician in 1988 and has been serving as a Supervisor since
2015. See id. ¶ 14.
The County’s AMT Personnel previously worked pursuant to a 1996 MOU Pilot
Program (the “1996 MOU”). See id. ¶ 38. The 1996 MOU sets forth the schedule of
AMT Personnel, which consisted of a four-week cycle as follows: (i) three consecutive
12-hour days for a total work week of 36 hours, followed by four calendar days off, in
weeks one, two, and four; and (ii) three nonconsecutive 12-hour days for a total work
week of 36 hours, followed by three calendar days off, in week three. See AC ¶¶ 3840; see also, e.g., Gurrieri Decl. ¶ 8. In 2000, the Civil Service Employees Association,
Inc., Local 830 (the “Union”), the collective bargaining agent for AMT Personnel,
entered into a second MOU with the County, which, inter alia, memorialized the
permanency of the 1996 MOU’s work schedule (the “2000 MOU,” and collectively with
the 1996 MOU, the “MOU”).
See id. ¶¶ 46-47.
The MOU purportedly defines
overtime as any work exceeding 36 hours per week. See AC ¶ 41. Pursuant to the
MOU, however, some AMT Personnel, including Plaintiffs, who are assigned to Duty
4
Chart Green (“Chart Green”) are required to work three extra 12-hour days per year
(the “Supplemental Days”). See id. ¶¶ 42-43. As a result, Plaintiffs work 48 hours in
a given week “numerous times per year.” Id. ¶ 48.
Plaintiffs therefore allege that the County has, inter alia, violated the FLSA
by failing to pay them owed overtime compensation. Id. ¶¶ 1-2, 49. 3 Specifically,
Plaintiffs claim that they have not been paid any overtime wages for weeks when
they worked a Supplemental Day (i.e. 48 hours). See id. ¶ 50. Further, Plaintiffs
contend that when they are paid overtime – for weeks when they work more than 40
hours for reasons other than Supplemental Days – the hourly rate is being improperly
calculated, resulting in them being paid less than they are owed. See id. ¶ 51. This
underpayment, Plaintiffs allege, is caused by their bi-weekly paychecks reflecting a
salary divided by an 80-hour two-week period instead of the 72 hours they actually
work in a regular fortnight. See id. ¶ 52-53. Thus, Plaintiffs claim both that they
have been deprived entirely of overtime wages on some occasions, and underpaid on
others. See id. ¶¶ 50, 54. Plaintiffs contend that they, along with approximately 140
other AMT Personnel, have all suffered substantially similar wage deprivations. See
id. ¶¶ 20, 37. Finally, Plaintiffs allege that the County became aware that it was
improperly calculating AMT Personnel’s overtime rate in 2011, but that it failed to
correct the issue. See Further Declaration of Ronald Gurrieri (“Gurrieri Supp. Decl.”)
¶ 11.
As discussed below, Judge Spatt dismissed any FLSA overtime claims concerning hours worked
between 36 and 40 in a given week. See Section I(B), infra.
3
5
B.
Relevant Procedural History
Based on the above, Plaintiffs commenced this lawsuit on December 19, 2016,
seeking to recover, inter alia, damages pursuant to the FLSA and NYLL.
See
generally Complaint, DE [1]. In addition to the allegations contained in the Amended
Complaint, outlined above, the initial Complaint claimed that Plaintiffs were
deprived of overtime wages for weeks that they swapped shifts (“Mutuals”), meaning
that they would work in excess of 36 hours in a given week as a result of trading shifts
with a coworker. See Complaint ¶¶ 54-56. Additionally, the original Complaint
named the Nassau County Police Department (“NCPD”) and Nassau County Civil
Service Commission (“NCCSC”) as Defendants. Before the County responded to the
initial Complaint, Plaintiffs filed the instant motion for conditional certification of an
FLSA collective action on February 13, 2017, and the motion was fully briefed on
April 10, 2017. See DEs [8], [14], [18], [19].
On February 23, 2017, the County moved to dismiss the original Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) (the “MTD”). See DE [9]. The MTD contended
that the following portions of the Complaint were subject to dismissal: (i) the claims
asserted as against the NCPD and NSSC; (ii) the allegations concerning Mutuals;
(iii) the claims for unpaid overtime wages for hours worked between 36 and 40 in a
given week; and (iv) the NYLL cause of action, in light of Plaintiffs’ failure to serve a
Notice of Claim pursuant to New York County Law § 52. See generally Memorandum
of Law in Support of MTD, DE [9-1]. In opposing the MTD, Plaintiffs claimed the
FLSA entitled them to overtime compensation for hours worked between 36-40
6
because the MOU dictated that 36 hours was a regular workweek, and also contended
that they were not required to serve a Notice of Claim for the NYLL claims due to an
exemption for suits brought to vindicate a public interest.
See generally
Memorandum of Law in Opposition to MTD, DE [12]. Nevertheless, Plaintiffs served
a Notice of Claim on March 13, 2017 to “cure any perceived deficiency.” See id. at 6.
In addition to opposing the MTD, Plaintiffs moved for leave to amend their
Complaint on April 12, 2017 (the “MTA”). See DE [20]. The MTA sought to amend
three paragraphs and add one other. See generally Declaration of Louis D. Stober,
Jr., Esq. in support of MTA, DE [20-1]. The proposed revisions to the existing
paragraphs were immaterial as far as the instant decision is concerned. See id. The
additional paragraph included an allegation that Plaintiffs had served their Notice of
Claim (although they still contended this was not necessary). See id. ¶ 15.
On August 9, 2017, the Honorable Arthur D. Spatt issued a Memorandum of
Decision and Order resolving both the MTD and MTA (the “MTD Decision”). See DE
[25]. With respect to the MTD, Judge Spatt dismissed: (i) all claims as against the
NCPD and NCCSC because, as administrative arms of the County, neither can be
sued as a separate entity; (ii) the allegations concerning weeks where overtime was
worked as a result of Mutuals because the FLSA and its implementing regulations
explicitly exempt hours worked in that regard from overtime protection; and (iii) any
claims with respect to unpaid overtime for hours worked between 36 and 40 in a given
week because, insofar as the MOU deemed those hours overtime, such relief would
lie in a claim for breach of contract rather than arise under the FLSA. See MTD
7
Decision at 11-13. In addition, Judge Spatt dismissed the NYLL cause of action
opining that Plaintiffs were required to serve a Notice of Claim prior to commencing
suit because their allegations did not qualify for the public interest exemption. See
id. at 13-16. The NYLL claims, however, were dismissed without prejudice such that
Plaintiffs were given an opportunity to seek relief in state court concerning whether
the untimely service of their Notice of Claim was sufficient. See id. at 16-17. In sum,
Judge Spatt: (i) granted the branch of the MTA seeking to revise certain paragraphs
of the Complaint; (ii) denied without prejudice the portion of the MTA requesting to
add an allegation concerning the Notice of Claim; (iii) dismissed the claims as against
the NCPD and NCCSC; (iv) limited Plaintiffs surviving claims to weeks in which they
worked more than 40 hours, not as a result of Mutuals; and (v) dismissed the NYLL
claims without prejudice, with leave to refile upon obtaining an order from a New
York State court dictating that the late Notice of Claim was adequate. See id. ¶ 17.
Finally, Judge Spatt indicated that if Plaintiffs indeed intended to seek relief in state
court with respect to the Notice of Claim issue, that the Court would stay the action
pending the outcome of that proceeding. Id. 4
On August 10, 2017, Plaintiffs wrote the Court indicating their intention to
obtain relief with respect to the late Notice of Claim from the Nassau County
Supreme Court. See DE [26]. Thus, on August 11, 2017, Judge Spatt stayed the
On August 16, 2017, Plaintiff filed a Motion for Reconsideration concerning the MTD Decision. See
DE [27]. That motion was terminated on September 20, 2017 because the case was stayed, and was
reinstated on May 7, 2018 once the stay was lifted. See September 29, 2017 Order Terminating Motion;
see also DE [36]. On December 14, 2018, Judge Spatt denied the motion for reconsideration. See DE
[69].
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8
action, and on August 14, 2017, he terminated the instant FLSA conditional
certification motion with leave to refile when the stay was lifted. See August 11, 2017
Order Staying Case; August 14, 2017 Order Terminating Motion. While the case was
stayed, Plaintiffs requested that their FLSA claims be restored while the NYLLrelated issue was being decided in state court, as they were concerned with potential
FLSA statute of limitations issues arising for putative class members. See DEs [31],
[32], [34]. The Court did not rule on these informal requests.
On April 12, 2018, Plaintiffs filed a letter indicating that the Nassau County
Supreme Court had deemed their Notice of Claim timely filed nunc pro tunc, and
requested, inter alia, that: (i) the stay of this action be lifted; (ii) the NYLL claims be
reinstated; and (iii) the Complaint be considered amended to include allegations
concerning the Notice of Claim. See DE [35]. Thus, on May 7, 2018, Judge Spatt
lifted the stay, deemed the complaint amended, consistent with Plaintiffs’ April 12,
2018 letter, and restored the NYLL claims. See DE [36]. On May 23, 2018, in
response to letters from the parties concerning confusion as to how to proceed with
respect to Plaintiffs’ amended allegations, see DE [37], [38], Judge Spatt directed
Plaintiffs to formally file the Amended Complaint. See DE [39]. On June 4, 2018,
Plaintiffs filed the Amended Complaint, which became the operative pleading. See
DE [40]. The County moved to dismiss the Amended Complaint on July 3, 2018,
arguing that the transcripts from the New York General Municipal Law Section 50h examinations warranted dismissal of the action pursuant to 29 U.S.C. § 207(k) and
its implementing regulations, which provide certain overtime exemptions for, inter
9
alia, law enforcement employers. See generally DE [47-1]. Judge Spatt declined to
consider the 50-h transcripts, and, in turn, denied the motion to dismiss the Amended
Complaint. See DE [69] at 6-10. 5 Accordingly, the County answered the Amended
Complaint on December 28, 2018. See DE [71].
Discovery is ongoing. See DE [68]. At a status conference before this Court on
February 27, 2019, the parties indicated that although discovery was progressing,
the pendency of the instant motion for conditional certification was delaying matters.
See DE [72] and FTR Log: 11:24-11:30. At that conference, it became evident that
the motion had never been formally restored to the Court’s active docket after the
stay was lifted. See id. Thus, on March 4, 2019, Plaintiffs formally sought to reinstate
the instant motion, see DE [73], and Judge Spatt subsequently referred it to this
Court for decision. See DE [74].
In their motion, Plaintiffs seek an order conditionally certifying this case as an
FLSA collective action and permitting dissemination of the Proposed Notice to all
AMT Personnel who worked for the County between December 19, 2010 and
December 19, 2016 (the date that the case was commenced). See generally Pltf.’s
Mem.; Proposed Notice. Plaintiffs claim that they have made the required “modest
factual showing” that they, and other AMT Personnel, “were victims of [the County’s]
common policies and plans that violate the FLSA and NYLL.” Pltfs.’ Mem. at 3-4.
Additionally, Plaintiffs argue that they have “established a sufficient factual nexus
Judge Spatt’s Memorandum of Decision and Order also addressed a number of other motions, none
of which are relevant for the purposes of the instant decision.
5
10
between their situation and that of the other [AMT Personnel] employed by
Defendant[]” such that conditional certification is warranted. Id. at 4. The motion
further seeks authorization to circulate the Proposed Notice, along with with consentto-join forms, to potential class members via United States Postal Service first-class
mail, in addition to posting it at the Ambulance Office. See id. at 9. Finally, Plaintiffs
ask the Court to direct the County to produce a computer-readable data file
containing the names, addresses, and telephone members of AMT Personnel who
worked for the County dating back six years from the filing of the Complaint. See id.
at 11-12. In support of their motion, Plaintiffs each submit a declaration describing
the County’s alleged violations and identifying other AMT Personnel purportedly
affected by Defendant’s conduct. See generally Pltfs.’ Decls.
In opposition, Defendant contends that not all AMT Personnel are similarly
situated in that they are subject to different work schedules and wage and hour
policies. See Def.’s Opp. at 1, 4. Thus, the County claims that it would be impossible
to conduct an efficient and fair trial via a collective action. Id. Moreover, Defendant
argues that, if the Court were to grant conditional certification, notice should be
limited to two years because the statute of limitations for claims under the FLSA is
two years for non-willful violations, and there is no evidence that the County willfully
violated the FLSA. See id. at 5-8. The County also objects to Plaintiffs’ request to
post the Proposed Notice at the Ambulance Office, claiming it they cannot do so
because the premises are not owned by Defendant. See id. at 11-12. Finally, the
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County contends that the Proposed Notice should be modified in several respects,
addressed in detail below. See id. at 8-11.
II.
Discussion
Pursuant to the FLSA, employees must be compensated “at a rate not less than
one and one-half times the regular rate at which [they are] employed” for every hour
worked in excess of 40 in a given work week. 29 U.S.C. § 207(a)(1). Section 216(b) of
the FLSA provides that:
An action … may be maintained against any employer ... by any one or
more employees for and on behalf of himself or themselves and other
employees similarly situated. No employee shall be a party plaintiff to
any such action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action is
brought.
29 U.S.C. § 216(b). “[D]istrict courts ‘have discretion, in appropriate cases, to …
facilitat[e] notice to potential plaintiffs of the pendency of the action and of their
opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537,
554 (2d Cir. 2010) (quoting Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169,
110 S. Ct. 482 (1989)).
Consistent with this discretion, and as detailed below, the Court:
(i) conditionally certifies this case as an FLSA collective action; (ii) authorizes the
dissemination of notice of the litigation, subject to the conditions set forth herein; and
(iii) orders Defendant to produce contact information for potential opt-in plaintiffs.
A.
Conditional Certification
Courts in the Second Circuit apply a two-step analysis to determine whether a
collective action under Section 216(b) of the FLSA should be certified. See Myers, 624
12
F.3d at 554. First, the Court evaluates whether the proposed class members are
“similarly situated” to the named plaintiffs. See Rodolico v. Unisys Corp., 199 F.R.D.
468, 480 (E.D.N.Y. 2001). If the Court finds that the putative class is sufficiently
similarly situated, the action will be conditionally certified and each class member
may then consent in writing to “opt-in” to the litigation and be bound by its result.
Id. (citing 29 U.S.C. § 216(b)). “[T]he key question for the similarly situated inquiry
is not whether plaintiff’s job duties are identical to other potential opt-in plaintiffs,
but rather, whether the proposed plaintiffs are similarly situated … with respect to
their allegations that the law has been violated.” Knox v. John Varvatos Enterprises
Inc., 282 F. Supp. 3d 644, 656 (S.D.N.Y. 2017) (internal quotations and citations
omitted). The second step generally occurs following completion of discovery and
requires examination of the evidentiary record to ascertain whether the opt-in
plaintiffs are, in fact, similarly situated. Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209,
212 (E.D.N.Y. 2009).
The present motion concerns only the first step of the
certification process – whether the proposed class members are similarly situated
such that conditional certification is appropriate.
At the conditional certification stage, “the evidentiary standard is lenient.”
Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 58 (E.D.N.Y. 2011); see also Lynch v.
United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“The burden for
demonstrating that potential plaintiffs are similarly situated is very low at the notice
stage”) (internal quotation and citation omitted).
Plaintiffs seeking conditional
certification “need only make a modest factual showing sufficient to demonstrate that
13
they and potential plaintiffs together were victims of a common policy or plan that
violated the law.” Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y.
2008) (internal quotation and citation omitted). “This low burden is consistent with
the broad remedial purpose of the FLSA.” Hamadou v. Hess Corp., 915 F. Supp. 2d
651, 661 (S.D.N.Y. 2013) (internal quotation and citation omitted). At this stage, “the
Court does not resolve factual disputes, decide substantive issues going to the
ultimate merits or make credibility determinations.” Summa v. Hofstra Univ., 715
F. Supp. 2d 378, 385 (E.D.N.Y. 2010) (quoting Francis v. A & E Stores, Inc., No. 06cv-1638, 2008 WL 2588851, at *2 (S.D.N.Y. June 26, 2008), report and
recommendation adopted as modified, 2008 WL 4619858 (S.D.N.Y. Oct. 16, 2008)
(internal quotation omitted)); see also Laroque v. Domino's Pizza, LLC, 557 F. Supp.
2d 346, 354 (E.D.N.Y. 2008) (“The standard in this circuit is clear; the merits of
plaintiffs’ claim are not at issue in a motion for conditional certification”).
To be entitled to conditional certification, a movant is not required to prove an
actual FLSA violation, “but rather that a ‘factual nexus’ exists between the plaintiff's
situation and the situation of other potential plaintiffs.” Sobczak v. AWL Indus., Inc.,
540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (quoting Wraga v. Marble Lite, Inc., No. 05cv-5038, 2006 WL 2443554, at *1 (E.D.N.Y. Aug. 22, 2006)); see also Sexton v.
Franklin First Fin., Ltd., No. 08-cv-4950, 2009 WL 1706535, at *3 (E.D.N.Y. June 16,
2009) (“‘nothing more than substantial allegations that the putative class members
were together the victims of a single decision, policy or plan’ is required”) (quoting
Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)). “Courts will certify
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broad classes where there is some showing that all members of the putative class
performed the same duties ... or that the employer had uniform company-wide
employment practices.” Vasquez v. Vitamin Shoppe Indus., Inc., No. 10-cv-8820, 2011
WL 2693712, at *3 (S.D.N.Y. July 11, 2011) (internal citation omitted). “It is not
necessary for the purposes of conditional certification that the prospective class
members all performed the same duties, or worked during the same time periods, or
worked at the same locations as the named plaintiffs.” Cano v. Four M Food Corp.,
No. 08-cv-3005, 2009 WL 5710143, at *7 (E.D.N.Y. Feb. 3, 2009).
Rather, the
appropriate inquiry is whether the prospective class members “were all similarly
situated with respect to being subject to the same policy of being denied overtime
compensation, and there exists a factual nexus among the plaintiffs.” Id. (emphasis
in original). The determination that potential opt-in plaintiffs are similarly situated
is typically based on the pleadings and declarations submitted in support of the
motion. See Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 452 (E.D.N.Y. 2014)
(“courts in the Second Circuit routinely grant conditional certification for overtime
claims based on the statements of the named plaintiff(s) and other supporting
affidavits”).
In this case, Plaintiffs have made a sufficient factual showing that they and
the potential collective action members – other nonexempt AMT Personnel who have
purportedly been denied overtime wages by the County – were together victims of a
common compensation policy that violated the FLSA.
The Amended Complaint
alleges that, pursuant to the MOU, Plaintiffs and similarly situated AMT Personnel
15
regularly work a four-week cycling schedule consisting of: (i) three consecutive 12hour days for a total work week of 36 hours, followed by four calendar days off, in
weeks one, two, and four; and (ii) three nonconsecutive 12-hour days for a total work
week of 36 hours, followed by three calendar days off, in week three. See AC ¶¶ 3940; see also, e.g., Gurrieri Decl. ¶ 8. In addition, Plaintiffs claim that the MOU
requires AMT Personnel assigned to Chart Green to work three extra Supplemental
Days each year. See id. ¶¶ 42-45. As a result, AMT Personnel purportedly work 48hour weeks “numerous times per year.” See id. ¶ 48. The Amended Complaint
further alleges that, despite sometimes working 48 hours in a given week as result of
Supplemental Days, Plaintiffs are not paid overtime wages for any hours worked in
excess of 36. 6
See id. ¶¶ 49-50.
Moreover, Plaintiffs contend that when AMT
Personnel are paid overtime (on weeks when they worked more than 36 hours for
reasons other than Supplemental Days), their overtime compensation was incorrectly
calculated as a result of the hourly rate being determined based on a salary divided
by an 80-hour two-week period rather than their ordinary 72-hour biweekly cycle.
See id. ¶¶ 51-53. Thus, AMT Personnel are purportedly underpaid in both respects.
See id. ¶ 54.
Finally, Plaintiffs assert that all of the approximately 140 AMT
Personnel employed by the County are subject to these wage violations. See id. ¶¶
20, 37.
The Amended Complaint’s allegations are supported by Plaintiffs’ respective
declarations submitted in support of the instant motion, each of which describes the
As discussed above, however, these allegations only survive insofar as they relate to weeks in which
AMT Personnel worked more than 40 hours. See Section 1(B), supra (citing MTD Decision).
6
16
County’s practice of withholding and improperly calculating overtime wages. See
Gurrieri Decl. ¶¶ 14-16; McCauley Decl. ¶¶ 9-15; Tedesco Decl. ¶¶ 9-15; Loiselle Decl.
¶¶ 9-15; Donoghue Decl. ¶¶ 9-15.
The declarations also name numerous AMT
Personnel who are subject to the County’s alleged overtime violations despite not
being named Plaintiffs. See, e.g., Gurrieri Decl. ¶ 22 (naming 17 AMT Personnel
subject to purported overtime violations); McCauley Decl. ¶ 21 (listing 10 AMT
Personnel subject to alleged overtime violations). Plaintiffs have therefore satisfied
the lenient standard applicable at this stage by submitting evidence of a uniform,
department-wide practice of overtime violations. See Vasquez, 2011 WL 2693712, at
*3 (noting that “[c]ourts will certify broad classes where there is some showing . . .
that the employer had company-wide employment practices”).
The Court is unpersuaded by Defendant’s argument that conditional
certification is inappropriate because, inter alia, some AMT Personnel were assigned
to Chart 13 rather than Chart Green, and therefore did not work Supplemental Days.
See Def.’s Opp. at 4. Initially, Plaintiffs contend that the County “constantly moves
individuals off and onto Chart Green” and that AMT Personnel who are not currently
assigned to Chart Green were for at least a portion of the time at issue in this
litigation. See Plfs.’ Reply at 3. Because it is premature for the Court to resolve
factual disputes at this juncture, and since Plaintiffs have alleged that “many” AMT
Personnel worked on Chart Green during the relevant time (the extent to which will
be uncovered during discovery), the County’s contention in this regard is rejected.
See Summa, 715 F. Supp. 2d at 385.
17
Moreover, this action concerns more than just Supplemental Days. Although
Judge Spatt dismissed claims associated with weeks where overtime was worked due
to Mutuals as well as those concerning hours worked between 36-40 in a given week,
see MTD Decision, there remain viable allegations concerning improper overtime
calculations for weeks in which overtime was paid (when AMT Personnel worked
more than 40 hours in a week not due to Supplemental Days or Mutuals), which
potentially affect all AMT Personnel. Finally, the County’s contention that Gurrieri
is not similarly situated to the other named Plaintiffs or AMT Personnel by virtue of
his role as Vice President of the Union causing him to have not worked any overtime
since 2004 is similarly rejected. See Def.’s Opp. at 5. Gurrieri states that he “still
work[s] additional overtime” without proper compensation, and posits that work
performed on behalf of the Union is deemed time worked in connection with his job
requirements. See Gurrieri Supp. Decl. ¶¶ 7-9 (citing Section 7-5 of a Collective
Bargaining Agreement between the County and the Union). Accordingly, Plaintiffs
have sufficiently alleged that Gurrieri continues to be subjected to the County’s
purported wage violations in a manner consistent with similarly situated AMT
Personnel.
In light of the evidence that the County’s allegedly unlawful practices are
widespread and impact AMT Personnel including but not limited to all named
Plaintiffs, the Court finds a sufficient “factual nexus” between Plaintiffs’ situation
and that of the proposed collective action members. See Sobczak, 540 F. Supp. 2d at
362 (“Courts regularly grant motions for approval of a collective action notice ‘based
18
upon employee affidavits setting forth a defendant's plan or scheme to not pay
overtime compensation and identifying by name similarly situated employees.’”
(quoting Wraga, 2006 WL 2443554, at *2)). Accordingly, the Court conditionally
certifies this matter as an FLSA collective action.
B.
Notice Period
The Court must next determine the appropriate timeframe applicable to the
class. In this regard, the Court concludes that a three-year window is warranted, and
that the statute of limitations should be tolled from the time Plaintiffs initially filed
the instant motion.
i.
Applicable Notice Period
Plaintiffs seek permission to include as potential collective action members all
AMT Personnel who worked for the County at any time during the time period of
December 19, 2010 through December 19, 2016 (the date the Complaint was filed).
See Pltfs.’ Mem. at 10-12; Proposed Notice at 2.
A six-year notice period is
appropriate, Plaintiffs contend, because their NYLL claims are subject to a six-year
statute of limitations, see N.Y. Lab. Law §§ 663(1), (3), and could fall within this
Court’s supplemental jurisdiction by virtue of 28 U.S.C. § 1367(a), even absent a class
certification pursuant to Fed. R. Civ. P. 23. See Pltfs.’ Mem. at 10-11; Pltfs.’ Reply at
9-10. Plaintiffs note that several courts in this District have required defendants
facing both FLSA and NYLL claims to provide relevant contact information of
potential class members for a six-year period prior to the commencement of the
action. See Pltfs.’ Mem. at 10 (citing Sharma, 52 F. Supp. 3d at 461; Cano, 2009 WL
19
5710143, at *10; Alcantara v. CNA Mgmt., Inc., 264 F.R.D. 61, 66 (S.D.N.Y. 2009);
Wraga, 2006 WL 2443554, at *3). Conversely, Defendant insists that a two-year
notice period is proper because Plaintiffs have presented no evidence that the County
willfully violated the FLSA. See Def.’s Opp. at 7. Citing McBeth v. Gabrielli Truck
Sales, Ltd., 768 F. Supp. 2d 396, 400 (E.D.N.Y. 2011), the County posits that “[t]he
‘growing trend’ in this District … is to limit the notice period to the applicable
limitations period under the FLSA….” Def.’s Opp. at 5-6.
The FLSA has a two-year statute of limitations except in the case of willful
violations, for which the statute of limitations is three years. See 29 U.S.C. § 255(a).
“At the conditional certification stage, allegations of willful conduct are sufficient to
apply the three-year statute of limitations for purposes of certifying the class.” Jie
Zhang v. Wen Mei, Inc., 14-cv-1647, 2015 WL 6442545, at *5 (E.D.N.Y. Oct. 23, 2015)
(citing Summa, 715 F. Supp. 2d at 388); see also Alvarez v. IBM Restaurants, Inc.,
839 F. Supp. 2d 580, 587-88 (E.D.N.Y. 2012) (“The Plaintiffs have alleged willfulness
in their Complaint . . . and the Defendants deny these allegations. Courts in this
circuit have generally held that where willfulness is in dispute, a three-year statute
of limitations applies at the conditional certification stage.”); Patton v. Thomson
Corp., 364 F. Supp. 2d 263, 268 n.2 (E.D.N.Y. 2005) (finding allegation of willful
violation justified notice based on a three-year statute of limitations period).
Here, the Amended Complaint repeatedly alleges that Defendant willfully
violated the FLSA. See, e.g., AC ¶¶ 2, 67, 68. Moreover, Plaintiffs substantiate their
assertion of willfulness by presenting evidence that the County was made aware of
20
its inaccurate overtime calculations in 2011, after which they adjusted their
procedures for Defendant’s Fire Marshal employees but failed to make the necessary
corrections for AMT Personnel. See Gurrieri Supp. Decl. ¶ 11. Accordingly, Plaintiffs
have sufficiently alleged willful conduct for the purposes of conditional certification.
The next issue, then, is whether either a three-year or a six-year notice period
is appropriate. District courts in this Circuit have reached inconsistent conclusions
with respect to this issue. Compare Trinidad v. Pret A Manger (USA) Ltd., 962 F.
Supp. 2d 545, 564 (S.D.N.Y. 2013) (“Authorizing notice for a time period twice the
length of the maximum FLSA limitations period would not serve the efficiency goal
articulated in Hoffmann[-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989)].”), with
Cano, 2009 WL 5710143, at *10 (“[T]his Court finds it prudent and expedient in this
case to allow a six-year period to apply, even if some recipients of the notice will have
claims that are time-barred under the FLSA.”). The more recent trend, however, is
to “approve three-year notice periods to avoid the confusion caused by notifying
plaintiffs who potentially have two disparate claims with different statutes of
limitations, along with the inefficiency of providing notice to plaintiffs whose claims
may well be time-barred.”
Mongiove v. Nate's Corp., No. 15-cv-1024, 2016 WL
590460, at *6 (E.D.N.Y. Feb. 11, 2016) (quoting Sanchez v. El Rancho Sports Bar
Corp., No. 13-cv-5119, 2014 WL 1998236, at *1 (S.D.N.Y. May 13, 2014) (internal
quotation omitted)); see also Hamadou, 915 F. Supp. 2d at 668 (limiting notice period
to three years); Lujan v. Cabana Management, Inc., 10-cv-755, 2011 WL 317984, at
*9 (E.D.N.Y. 2011) (same).
21
The instant motion seeks certification only with respect to Plaintiffs’ FLSA
claims, and Plaintiffs have not yet moved for class certification of their NYLL claims
pursuant to Fed. R. Civ. P. 23. Thus, the Proposed Notice would be directed only to
those persons eligible to opt-in to the FLSA collective action. It would therefore be
unnecessarily confusing for employees who are ineligible for the FLSA opt-in class to
receive a notice that pertains only to the FLSA claims. The Court finds that the
resulting inefficiency weighs against notice going back six years, rather than three
years. Further, although the Court may eventually certify a class for the NYLL
claims, that class would be opt-out, not opt-in, in nature. Thus, those class members
would face no risk of claim lapse, even if they did not receive notice of this case at this
juncture. See Hamadou, 915 F. Supp. at 668. Accordingly, the Court limits the
timeframe for notification to the three-year period applicable to Plaintiffs' FLSA
claims.
ii.
Equitable Tolling of the Statute of Limitations
Given the lapse in time that has occurred since Plaintiffs filed their motion for
conditional certification in 2017, the Court sua sponte addresses statute of limitations
issues that have since arisen. Because the instant motion was filed promptly after
this action was commenced, the briefing does not address equitable tolling. The
parties did, however, file competing letters contemplating this issue after Judge Spatt
lifted the stay. See DEs [42] – [44]. In their letters, Plaintiffs argue that the lengthy
delay caused by the stay resulting from their NYLL claims being dismissed justifies
equitable tolling, see DEs [42], [44], whereas Defendant contends tolling is
22
inappropriate because any lapse in time was brought on by Plaintiffs’ own doing. See
DE [43]. Thus, although no formal motion concerning equitable tolling is pending,
the Court considers the issue out of necessity and in light of the parties’
contemplation of the subject.
“[T]he statute of limitations applicable to a plaintiff’s claim continues to run
until he or she has filed a written consent with the court to join the lawsuit.” Garriga
v. Blonder Builders Inc., No. 17-cv-0497, 2018 WL 4861394, at *10 (E.D.N.Y. Sept.
28, 2018) (citing 29 U.S.C. § 256(b)). The Court, however, “may toll the limitations
period to avoid inequitable circumstances” under the doctrine of equitable tolling. See
id. (internal quotation and citations omitted).
One such circumstance where
equitable tolling is appropriate is during the period in which the motion for
conditional certification is pending. See Jackson v. Bloomberg, L.P., 298 F.R.D. 152,
170 (S.D.N.Y. 2014) (applying equitable tolling as of the date of the filing of a
conditional certification motion that took seven months to decide); McGlone v.
Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012) (“While plaintiffs
wishing to pursue their rights cannot sit on them indefinitely, those whose putative
class representatives and their counsel are diligently and timely pursuing the claims
should also not be penalized due to the courts' heavy dockets and understandable
delays in rulings”); Yahraes v. Rest. Assocs. Events Corp., No. 10-cv-935, 2011 WL
844963, at *2 (E.D.N.Y. Mar. 8, 2011) (“The delay caused by the time for a court to
rule on a motion, such as one for certification of a collective action in a FLSA case,
23
may be deemed an extraordinary circumstance justifying application of the equitable
tolling doctrine”) (internal quotation bracket and citations omitted).
Under the present circumstances, the Court concludes it is appropriate to toll
the three-year statute of limitations for the period between the initial filing of the
motion for conditional certification and the date of this Memorandum and Order. The
record is clear that Plaintiffs diligently pursued conditional certification. Specifically,
Plaintiffs filed their motion on February 13, 2017, less than two months after
initiating suit and before Defendant responded to the Complaint. See DE [8]. The
motion, however, was terminated on August 14, 2017, after Judge Spatt stayed the
entire action. See August 14, 2017 Order Terminating Motion; see also August 11,
2018 Order Staying Case. While the case was stayed, Plaintiffs wrote the Court on
multiple occasions requesting that the FLSA claims be restored such that the
conditional certification motion could be considered pending the outcome of the state
court proceeding. See DEs [31], [32]. During this time, plaintiffs also requested
permission to refile their FLSA conditional certification motion. See DE [31].
On April 12, 2018, Plaintiffs filed a letter indicating that the Nassau County
Supreme Court had issued an order three days earlier deeming their Notice of Claim
timely filed nunc pro tunc, and thus requested, inter alia, that the stay be lifted. See
DE [35]. On May 7, 2018, Judge Spatt reactivated the case, but the instant motion
was never formally restored. See DE [36]. On February 27, 2019, this Court held a
status conference, at which point it was brought to the Court’s attention that
discovery had progressed but that the case was being held up because of the pendency
24
of this motion, which had not yet been decided. See DE [72], and FTR Log: 11:2411:30. Thus, on March 4, 2019, Plaintiffs formally moved to restore the motion to the
Court’s docket. See DE [73].
Based on the foregoing, the Court is satisfied that Plaintiffs have diligently
pursued conditional certification from the onset of this case, despite a number of
procedural hurdles. Notwithstanding Defendant’s implication that Plaintiffs chose
to stay the case and thus caused the delay, see DE [43], the reality is that Plaintiffs
would have been forced to abandon their NYLL claims in order to have the instant
motion decided at an earlier date. The MTD Decision dictated that the entire case
would be stayed while the Notice of Claim issue was resolved in state court, and
Plaintiffs merely triggered the stay by informing the Court of their intention to seek
such relief. See MTD Decision at 17-18; see also DE [26]. Moreover, absent tolling of
the limitations period, a substantial number of class members may now be timebarred through no fault of their own. Accordingly, the Court concludes that it is
equitable to toll the statute of limitations for the period while the motion for
conditional certification was pending (i.e., from February 13, 2014 through the
present), and directs that notice be provided to any AMT Personnel employed by the
County during that time. 7
The Court notes that any particularized challenge to a given Plaintiff’s statute of limitations will be
entertained at the appropriate juncture.
7
25
C.
Proposed Notice
i.
Content of the Notice
Plaintiffs also move for an order authorizing dissemination of the Proposed
Notice to all nonexempt AMT Personnel who were employed by the County between
December 19, 2010 through December 19, 2016. See Pltfs.’ Mem. at 8-9; Proposed
Notice. With respect to the content of the Proposed Notice, Plaintiffs contend that
the Court should approve the version attached to their motion, see DE [8-2], Ex. G,
because it is “timely, accurate, and informative[.]” See Ptfs.’ Mem. at 9. In support
of that assertion, Plaintiffs argue that the Proposed Notice informs recipients of the
pendency of the action and the opportunity to opt in, gives clear instructions on how
to join, accurately describes Plaintiffs’ claims, and advises potential class members
that they need not participate. See id. In addition, Plaintiffs point out that the
Proposed Notice informs possible class members that the County will defend against
the claims, and that retaliation or discrimination for participation in a FLSA action
is prohibited. See id.
Defendant argues that the Proposed Notice is defective in several respects
and, as such, should not be approved as submitted. See Def.’s Mem. at 8-11. As an
initial matter, the County requests that the Proposed Notice be modified to reflect all
rulings made in connection with the instant motion and the MTD Decision. See id.
at 8. 8 Defendant also contends that the Proposed Notice should inform recipients
about the possibility that they could be responsible for court costs, state that the case
Although Defendant’s opposition was filed before the MTD Decision was published, its brief
contemplates Plaintiffs’ claims being narrowed.
8
26
is a matter of public record, and clearly delineate its counsel’s contact information in
addition to Plaintiffs’ counsel’s information. See id. at 9-11. Finally, the County
points to a typographical error whereby the Proposed Notice should inform potential
opt-in members of the right to hire “your” own attorney, as opposed to “our” own
counsel. See id. at 10.
Neither the FLSA nor any court has expressly outlined what form courtauthorized notice should take or what provisions the notice should contain. See
Moore, 276 F.R.D. at 58 (citing Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d
317, 323 (S.D.N.Y. 2007)). It is well-settled, however, that “[t]he form of a courtauthorized notice and provisions contained in it are left to the broad discretion of the
trial court.” Sobczak, 540 F. Supp. at 364; Hernandez v. Immortal Rise, Inc., No. 11cv-4360, 2012 WL 4369746, at *6 (E.D.N.Y. Sept. 24, 2012) (“courts have broad
discretion to craft appropriate notices that effectuate the overarching policies of the
collective suit provisions [of the FLSA] and provide employees with accurate and
timely notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate”) (internal quotation and citation
omitted).
Consistent with this discretion, the Court concludes that a collective action
notice should be disseminated to potential opt-in members. Nevertheless, the Court
directs that the Proposed Notice be modified in several respects. First, the notice
must be revised to reflect both the instant Memorandum and Order along with the
MTD Decision.
To that end, any reference to the dismissed parties should be
27
removed, and all references to Defendant must be singular. Further, the notice must
be revised throughout to indicate that the lawsuit only concerns hours worked in
excess of 40 in a given week (not 36), and footnote one should therefore be deleted
from the first page. Additionally, consistent with the discussion above, the class
should be redefined to only include the period from February 13, 2014 through the
present. 9
In addition to reflecting the Court’s rulings, the notice shall explain that this
case – and any party’s participation in it – is a matter of public record, as such an
explanation is informative and Plaintiffs have not offered a specific objection to
Defendant’s request in this regard. Further, the typographical error on page two
should indeed reflect opt-in members’ right to hire “your” own attorney. Finally, the
mailing address listed on the final page of the Proposed Notice must be revised to
reflect the proper parties (i.e., “Chodkowski” should be replaces with “Gurrieri”).
Notwithstanding the foregoing, the Court agrees with Plaintiffs that the notice
should not reference opt-in plaintiffs’ potential liability for costs associated with the
lawsuit. See Pltfs.’ Reply at 11. Although some courts have approved language to
this effect, see, e.g., Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101,
110 (S.D.N.Y. 2003), many courts in this District have reached the opposite
conclusion. See, e.g., Dilonez v. Fox Linen Serv. Inc., 35 F. Supp. 3d 247, 256
(E.D.N.Y. 2014) (rejecting language in the notice of pendency concerning potential
To that end, on the first page, where the Proposed Notice indicates who it is “TO,” the relevant time
period should also be listed (i.e., “TO: All Ambulance Medical Technicians … employed by the County
between February 13, 2014 and [today] ”).
9
28
costs to opt-in plaintiffs); Garcia v. Pancho Villa's of Huntington Vill., Inc., 678 F.
Supp. 2d 89, 95 (E.D.N.Y. 2010) (same); Guzman v. VLM, Inc., No. 07-cv-1126, 2007
WL 2994278, at *8 (E.D.N.Y. Oct. 11, 2007) (“Given the remote possibility that such
costs for absent class members would be other than de minimis ... such language is
inappropriate”). Accordingly, in light of the FLSA’s overarching remedial purpose,
the Court will not authorize language stating that opt-in plaintiffs may be required
to pay costs in the event they do not prevail.
Nor will the Court approve Defendant’s request that the notice clearly
delineate its counsel’s contact information. Inclusion of defense counsel's contact
information is not required to render an FLSA notice fair, and is likely to create
confusion rendering distribution or collection of consent to join forms less effective.
See Chhab v. Darden Restaurants, Inc., 11-cv-8345, 2013 WL 5308004, at *16
(S.D.N.Y. Sept. 20, 2013) (“Only plaintiffs' counsel can potentially represent the
individuals to whom the notice is mailed, and only they should be privy to certain
sensitive information that may otherwise fall within the attorney-client privilege”).
The Court has reviewed the Proposed Notice in its entirety and, save the issues
described above, approves its contents. Accordingly, once Plaintiffs have edited the
notice to reflect the above requirements, they should serve a draft on the County on
or before June 7, 2019. Defendant should thereafter serve any objections, or give its
consent, on or before June 18, 2019. The parties should then file a joint motion for
Court approval of the notice’s dissemination on or before June 28, 2019. That motion
should attach the final version of the draft notice along with a proposed opt-in form.
29
Upon the Court’s approval of the final notice, Plaintiffs shall distribute the same
within two weeks. Finally, all opt-in forms must be filed with the Court within 60
days of the final notice’s dissemination.
ii.
Distribution of the Notice
With respect to the manner of distribution, Plaintiffs seek permission to send
the Proposed Notice, along with consent-to-join forms, via United States Postal
Service first-class mail, as well as to post it in the Ambulance Office. See Pltfs.’ Mem.
at 7-9. In support, Plaintiffs assert that AMT Personnel “frequent” that location. See
id. at 7-8. Defendant does not object to dissemination via mail, but claims it cannot
post the notice at Ambulance Office because it is not County property. See Def.’s Opp.
at 11.
The County, however, fails to substantiate this assertion.
In response,
Plaintiffs claim that Defendant “routinely posts other types of notices at the
[Ambulance Office] …” Gurrierei Supp. Decl. ¶ 13. In light of the Court’s “broad
discretion to craft appropriate notices that effectuate the overarching policies of the
[FLSA’s] collective suit provisions and provide employees with accurate and timely
notice concerning the pendency of the collective action[,]” Hernandez, 2012 WL
4369746, at *6 (internal quotation marks and citation omitted), the Court will permit
Plaintiffs to both send the notice to potential opt-in members via first-class mail and
post it in the Ambulance Office. See Cabrera v. Stephens, No. 16-cv-3234, 2017 WL
4326511, at *8 (E.D.N.Y. Sept. 28, 2017) (“Courts routinely approve requests to post
notice on employee bulletin boards and in other common areas, even where potential
members will also be notified by mail”) (internal quotations and citations omitted).
30
D.
Production of Contact Information
In addition to the relief discussed above, Plaintiffs seek an order directing
Defendant to provide their counsel with a computer-readable data file containing the
names, addresses, and phone numbers of all potential collective action members,
namely, all AMT Personnel who were employed by the County dating back six years
from the filing of the Complaint. See Pltfs.; Mem. at 11. Defendant does not object
to this request, but, as discussed above, seeks to limit the class to two years.
It is typically appropriate for courts in FLSA collective actions to order the
discovery of contact information of potential opt-in plaintiffs. See Fa Ting Wang v.
Empire State Auto Corp., No. 14-cv-1491, 2015 WL 4603117, at *14 (E.D.N.Y. July
29, 2015) (“Disclosure of the names, addresses, telephone numbers, and email
addresses of putative class members is commonplace in this district because such
information is essential to identifying and notifying potential opt-in plaintiffs”); Ack
v. Manhattan Beer Distributors, Inc., No. 11-cv-5582, 2012 WL 1710985, at *6
(E.D.N.Y. May 15, 2012) (“Courts routinely order discovery of names, addresses, and
telephone numbers in FLSA actions”).
As a general matter, the Court considers Plaintiffs’ request to be appropriate,
as the information they seek will not be unduly burdensome or disruptive to the
County’s business operations. See Sexton, 2009 WL 1706535, at *13. Accordingly,
the Court directs Defendant to provide the names, addresses and telephone numbers
of potential opt-in members in electronic format to counsel for Plaintiffs. For the
reasons stated above, however, the County only needs to provide such information for
31
potential collective action members employed by Defendant during the three-year
period discussed above, consistent with the applicable FLSA statute of limitations.
This information shall be provided to Plaintiffs on or before June 7, 2019.
III.
Conclusion
For the foregoing reasons, the Court grants in part and denies in part
Plaintiffs’ motion as follows:
1) this action is conditionally certified as a collective action, with the
potential class including any and all current and former AMT Personnel
who were employed by the County from February 13, 2014 through the
present;
2) Defendant is directed to produce a computer-readable data file
containing the names, addresses and telephone numbers of potential
opt-in members on or before June 7, 2019;
3) Plaintiffs are authorized to disseminate the final approved notice and
opt-in forms via first class mail within two weeks of the Court’s
approval of the final version, and the County is directed to
conspicuously post the approved notice and opt-in forms at the
Ambulance Office; and
4) the statute of limitations is tolled from February 13, 2014 through the
date of this Memorandum and Order.
Dated:
Central Islip, New York
May 23, 2019
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
32
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